Friday, April 28, 2017

How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?

by Michael Dorf
(cross-posted on Take Care)

Thirty-five years ago, in Nixon v. Fitzgerald, the Supreme Court held that the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity. Twenty years ago, the Supreme Court rejected Bill Clinton's argument that a sitting president should enjoy temporary immunity from all civil lawsuits while he is president, including lawsuits seeking to recover for pre-presidential acts. Refusing to extend Fitzgerald in this way, the Court rejected Clinton's argument in Clinton v. Jones. The justices reasoned that answering such˙a lawsuit would not unduly distract the president from his official duties.

Clinton v. Jones looks like a potentially very damaging precedent for President Trump and his lawyers as they battle the various civil cases pending against him. How can the president respond?

Thursday, April 27, 2017

Saturation Coverage of Non-News About Tax Policy

By Neil H. Buchanan

[Note: The tenth and twenty-first paragraphs below have been updated to correct an error on my part regarding the lowest tax rate in Trump's non-plan.]

During the 2016 election campaign, Donald Trump hit a low point with the press when he announced that he would make a "major statement" about the birther controversy, supposedly to tell the world at long last that he had been wrong to say for years that Barack Obama was not a natural-born U.S. citizen.

In fact, Trump used the occasion to lead a meandering media event that he turned into an infomercial for his new hotel in Washington, D.C.  Finally, after jerking around the assembled press for what seemed like an eternity, Trump quickly said that Obama was born here and that the birther controversy was Hillary Clinton's fault all along.  He then left the room.

I take this trip down memory lane because that cynical manipulation of the press was supposed to have been a defining moment, the day that the press finally woke up and refused to be "played" by Trump's ongoing reality-TV show.  But of course, the press has instead slouched back into its familiar role of eagerly reporting on everything that comes out of the White House as if it is news.

Which brings us to this week's hysteria over Trump's "massive" tax cut.  Nothing of any real significance happened this week regarding tax policy, but reading the news coverage would make a reasonable person think that the world has just been shaken by the announcement of a major policy proposal.

In short, by doing nothing more than pretending to have something to say, Trump "won the news" again this week.  We know nothing more than we knew a week ago, but Trump succeeded in making it look as though he was doing something big before the 100-day mark of his presidency.  What can we learn from this non-event?

Wednesday, April 26, 2017

Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb

In my Verdict column for this week, I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies).

In this post, I want to focus on the names that we give the lawsuits at issue, "wrongful birth" or "wrongful life" suits.

Tuesday, April 25, 2017

Trump Is -- Gasp! -- Being Dishonest About the National Debt

by Neil H. Buchanan

It has always been clear that Republicans are situational deficit hawks.  They are perfectly happy to run up huge amounts of debt when their men occupy the White House, and even to leave spending for their wars off of the official accounts.  When a Democrat becomes president, however, suddenly those Republican opportunists claim to be terrified of debt.

It was not surprising, then, that Donald Trump ran on an especially aggressive version of debt obsession, claiming that there was a "magic number" of "24 trillion ... 23 ... 24," one of which he claimed is "the number at which we become a large-scale version of Greece."

The most obvious reaction at the time was to point out that Trump's promises regarding military spending and huuuuge tax cuts (those tax cuts alone adding roughly a trillion dollars per year to the debt) would make it impossible to pay down the national debt, which Trump also promised to do.  But as a candidate, he had fun.  Why would he start to pay attention to reality now?

Monday, April 24, 2017

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

by Michael Dorf
(cross-posted on Take Care)

A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).

Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.

Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.

And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.

Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.

Friday, April 21, 2017

Is It Even Possible to Be Too Hard on Supply-Siders?

by Neil H. Buchanan

The Republican leadership uniformly despised Donald Trump during last year's primaries, fiercely opposing him before finally meekly submitting to his misrule.  Throughout this tragicomedy, however, Trump and his party have always agreed on one thing: the magical effects of tax cuts for rich people.

No matter what concerns Republicans might have had about Trump's anti-trade shouting, or his proud ignorance of foreign affairs, or his very un-Republican track record on social issues -- a record that has not prevented Trump from now supporting the worst excesses of his party's culture wars -- Trump was as solid as a rock on regressive tax cuts and heedless slashing of safety and environmental regulations.

Trump is, in short, every bit as much of a believer in supply-side economics as every other eager Republican has been for the past generation or so.  This is why his decision to turn the page from his growing list of abysmal failures by trying to enact a big change to the tax code has made it important to understand again just what is wrong with the trickle-down version of supply-side economics that Republicans so fervently embrace.

In a number of recent columns, I have offered some fairly brutal assessments of supply-side economics.  I have argued, for example, that "those who genuinely continue to believe in the miraculous effects of supply-side tax cuts represent the triumph of faith over reason."

It is, however, worth stopping to ask whether I am being too hard on the supply-side devotees.  Is support for their theory as weak as I have been saying?  The answer is, if anything, that I have gone too easy on them.  It might well be impossible to be too dismissive of supply-side economics.

Thursday, April 20, 2017

Trump, Syria, Tienanmen, and the Downside of Civilian Control of the Military

by Michael Dorf

In my latest Verdict column, I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine international law and thus the substantive humanitarian norms that the interventionists seek to protect.

In this post, I want to step back from the immediate controversy and even from the broader legal questions they raise about humanitarian interventions to report on a fascinating conversation I recently had with a Chinese scholar. That has led me to conclude that executive unilateralism is something of a universal problem and that a much-vaunted feature of many constitutions--civilian control of the military--is a double-edged sword.

Wednesday, April 19, 2017

Competitor Plaintiffs in Emoluments Clause Case Bolster Standing

By Michael Dorf
(cross-posted on Take Care)

Almost immediately after President Trump's inauguration, Citizens for Responsibility and Ethics in Washington ("CREW") filed a lawsuit against him alleging multiple violations of the Emoluments Clause occasioned by Trump's continuing to profit from his opaque business empire. The complaint alleged that CREW has standing because, as a government ethics watchdog agency, it would incur very substantial additional costs monitoring and otherwise responding to Trump's activities.

Some commentators objected that such costs ought not to suffice as an "injury" sufficient to confer standing under the Constitution's Article III because, they said, if it did, then any self-appointed do-gooder could manufacture standing simply by asserting an interest in monitoring and responding to alleged wrongdoing. These commentators typically cited Clapper v. Amnesty Int'l USA for the proposition that CREW suffered from a mere "self-inflicted injury." Yet, as I argued in response, the skeptics were falsely assuming that Clapper and other recent cases sub silentio overruled the chief standing case on which CREW relied: Havens Realty Corp. v. Coleman, which articulated the monitoring/response cost theory of standing.

That said, although Havens remains good law to support CREW's standing in the lower courts, the current Supreme Court might either overrule Havens or (mis)construe it as inapplicable to CREW, if and when the case arrives there. Although lower courts are forbidden from anticipatorily overruling SCOTUS cases on the ground that subsequent doctrinal developments have weakened them, the SCOTUS can of course overrule its prior decisions. Accordingly--and prudently--the CREW complaint has now been amended to add claims by parties that stand to lose money as a consequence of Trump's Emoluments Clause violations: a restaurant association suing on behalf of itself, its member restaurants, and restaurant workers; and Jill Phaneuf, a Washington, D.C.-based events booker who works with non-Trump hotels. The addition of these plaintiffs should make the lawsuit bulletproof on standing grounds.

Tuesday, April 18, 2017

Democrats Score Another Strategic Victory on Trump's Tax Returns

by Neil H. Buchanan

The annual deadline for filing taxes is guaranteed to bring out plenty of discussion of tax reform, and with a new president in office, the buzz is inevitably going to be even louder.  Unfortunately, that new president is Donald Trump, so this year's political discussion about taxes has become both deafening and stupefying.

Monday, April 17, 2017

To Fix the Confirmation Process We Need to Face the Truth About SCOTUS

By Eric Segall

As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating, for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.”

In light of Justice Gorsuch’s refusal to answer any meaningful questions at his confirmation hearing, as well as the GOP’s stonewalling of Judge Garland, it is tempting for Court watchers, as well as the Chief Justice himself, to blame the confirmation process for the current despair over the Court. But that leap is a serious mistake. The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.

Friday, April 14, 2017

The Gang That Can't Shoot Straight Takes Aim at the Tax Code

by Neil H. Buchanan

One of the recurrent questions of the Trump era has been whether there is any difference between the president and the rest of the Republican Party.  It is not just a matter of noting the many ways in which the national party establishment, which uniformly reviled Donald Trump during last year's primaries, so quickly and embarrassingly fell into line, although that is certainly a story in itself.

The bigger question has been whether the Trump Administration's conspicuous incompetence is merely a result of the White House team's inexperience or is instead evidence of something deeper.  It is becoming clearer every day that the Keystone Kops-like ineptitude that we are seeing in the era of Republican dominance is caused by ideological commitments and political rigidities across the Republican terrain.

There is, of course, a certain comfort in all of this.  As John Dean put it recently: "The [Trump Administration's] incompetence is the only thing giving me comfort at the moment."  But is it really just Trump and Steve Bannon who are being exposed as bumblers?

Thursday, April 13, 2017

Advice to Conscientious Originalists: Rebrand

by Michael Dorf

My post on Tuesday on the stakes of the originalism debate sparked very thoughtful responses by two of the leading "new" originalists: Georgetown Law Professors Larry Solum and Randy Barnett. In a Postscript I added to update my original post, I was happy to accept fully one of Prof. Solum's points (about the use of the term "semantic originalism") and to clarify how much of the level-of-generality argument I meant to endorse. Meanwhile, Prof. Barnett zeroed in on a claim I made in both Tuesday's post and at greater length in my 2012 Harvard Law Review essay The Undead Constitution: that scholars who in good faith pursue public meaning originalism thereby provide aid and succor to judges, public officials, and pundits who misuse their work in defense of original-intentions-and-expecations originalism or worse, ideological originalism.

Well so what? Why, Prof. Barnett asks, should the fact that some actors promote bad originalism prevent scholars with integrity from pursuing good originalism? Building on Prof. Barnett's piece, Prof. Solum argues that constitutional scholars ought to be scholars first and thus our obligation as scholars to "speak the truth" should prevail over any putative obligation to avoid giving ammunition to those who would misuse it.

Here I will briefly respond to this important question that Professors Barnett and Solum raise. To summarize, my answer is that scholars who are persuaded that public meaning originalism is correct should pursue public meaning originalist scholarship but that they should give it a new name that does not include any variants of the words "originalist" or "originalism."

Wednesday, April 12, 2017

United Airlines' Own Contract Denied it any Right to Remove Passenger

by Jens David Ohlin

On Sunday, United Airlines passenger David Dao was forcibly removed from his United Airlines flight when he refused to relinquish his seat. The police officers who removed him from the seat then dragged him down the aisle of the airplane. Videos of the incident show a visibly injured and bloodied Dao screaming. Videos also show a clearly injured Dao returning to the plane, walking up and down the aisle, and muttering that he needed to get home. He was then escorted off the plane a second time.

The incident has caused a PR nightmare for United Airlines. Videos of the incident have reinforced the public perception that airlines care too much about their profit margins and too little about their passengers. The initial public comments from the airline exacerbated the PR crisis by insufficiently recognizing the depth of the public’s anger over the issue. Instead of apologizing profusely in the first instance, the airline initially issued statements indicating that it was reviewing the situation and apologizing only for the need to “re-accommodate” the affected passengers. Only later did United CEO Oscar Munoz issue a blanket apology for the incident and pledge a full investigation and review of its policies that led to the event.

The airline’s stock has declined since the incident became public, and some on the Internet are suggesting a consumer boycott. Twitter users have relentlessly mocked the airline with a series of vicious memes.

For the moment, I want to focus on the basic premise—and legal assumptions—behind most of the press accounts of the incident. Most articles and news reports have implied that the airline was permitted to remove Dao from the airplane. Articles have made this claim as part of a larger point to readers: Airlines frequently overbook their flights and “bump” passengers, and then pay them compensation in line with federal regulations governing the payment of this compensation.  It happens all the time, according to the newspapers.

One-Sided Dishonesty

by Neil H. Buchanan

My two most recent columns addressed two very different subjects.  The Senate Democrats' filibuster of the Gorsuch nomination to the Supreme Court is worlds away from the Republicans' continued faith-based belief in supply-side economics, but both columns ultimately came back to the same larger points: Republicans' embrace of shameless dishonesty, and how everyone else should respond.

Yes, I know that no political party can ever be made up of angels, and people who write columns like this one are supposed to say that "both sides do it."  A few months ago, for example, after The New York Times published a guest op-ed arguing that Donald Trump is a threat to democracy, two letter writers were irate.

Supposedly, the problem was not that the op-ed had argued that Trump is a danger to democracy.  The big sin was instead that the op-ed's authors had not also chided Democrats.

Tuesday, April 11, 2017

The Stakes of the Originalism/Textualism Debate

by Michael Dorf

(Updated with a Postscript below.)

For a period after Justice Scalia's death, when it appeared as though President Obama would be able to name Scalia's successor and that a Democratic president would fill future vacancies, various commentators wondered whether Scalia's chief jurisprudential legacy--originalism in constitutional adjudication and textualism in statutory adjudication--would have staying power. For example, Prof. Eric Posner predicted that originalism would fade. Last week's Senate confirmation of Justice Gorsuch, who was happy to embrace the originalist and textualist labels, ensures that there will continue to be a market for briefs that make arguments appealing to originalist justices; this real-world relevance will in turn likely give a boost to originalist scholarship.

By originalist scholarship I do not mean historical scholarship. Just about all jurists and scholars think that the history surrounding the adoption of authoritative legal texts (be they constitutional or statutory provisions) has some substantial relevance to its proper contemporary application. What makes originalism ostensibly distinct from other views is what Prof. Larry Solum has called the "fixation thesis"--the notion that the meaning of a provision is fixed at the moment of its enactment--and the "constraint thesis"--the notion that this fixed meaning constrains constitutional practice. One can concede both points to Solum and concede further that whether judges accept these theses affects how they write opinions justifying their rulings. However, for reasons similar to those elaborated on this blog last week by Prof. Eric Segall in describing a recent article by Prof. Peter Smith, I think that whether a judge accepts Solum's theses has little immediate practical impact. Nonetheless, the stakes in the debate over originalism are not as low as one might think, as I shall explain.

Monday, April 10, 2017

The Rule of Law and Politics at the Supreme Court

By Eric Segall

Over the weekend I participated in a wonderful constitutional law conference at Pepperdine with among many others, Michael McConnell, Mark Tushnet, Akhil Amar, Erwin Chemerinsky, Judge Posner and Barry McDonald. The overriding question of the day was whether structural changes to the Court are necessary given our hyper-partisan times. Although folks disagreed over that question, there was a general consensus that the Supreme Court is in some important sense "political," although folks meant different things by using that label, which is the point I want to focus on in this essay.

Senate Democrats Show Strength, Liberal Pundits Show Weakness

by Neil H. Buchanan

And now Judge Gorsuch is Justice Gorsuch, completing the successful scorched-earth maneuvering by Senate Republicans to move the Supreme Court even further to the right.  May God have mercy on Mitch McConnell's soul (if He can find it).  As bad as this is, it is not a surprise.

What is surprising is that the Senate Democrats actually figured out a way to make a few good things happen in the midst of this yearlong travesty, even though they knew that they would lose the ultimate battle.  Somewhat more surprisingly, Democratic politicians were actually more savvy than the left-leaning pundits this time around.

Sunday, April 09, 2017

Imagining the End of President Trump

By William Hausdorff

There continues to be a steady drip of revelations about Russian links, unending lies surrounding them, and a snowballing accumulation of lawsuits.  I’m now trying to imagine what specific revelations would have to come to light for this Presidency to be fatally wounded, and which Republicans would eventually stand up to Trump.

Friday, April 07, 2017

Expanding Reality-Based Law in the Death Penalty Area

by Sherry F. Colb

In my most recent Verdict column, I discuss the case of Moore v. Texas, in which the Supreme Court rejected the Texas approach to determining whether a defendant is intellectually disabled and therefore ineligible for the death penalty.  A Texas state habeas court had recommended a finding of intellectual disability for Moore, applying standards from the most up-to-date clinical manuals addressing intellectual disability and mental disorders.  The Texas Court of Criminal Appeals ("the CCA") rejected the state habeas court's recommendation, however, applying instead the standards contained in a 2004 case, Ex Parte Briseno, which utilized a combination of standards from an older intellectual disability manual (since superseded by the one used by the state habeas court) and several factors seemingly invented by the Briseno court and related to stereotypes about the intellectually disabled (including a reference to the intellectually disabled character, Lennie, in John Steinbeck's 1937 novel, Of Mice and Men).  The U.S. Supreme Court reversed the CCA's decision, finding that the court should have applied up-to-date clinical standards to determine whether Moore was intellectually disabled.  In the column, I contrast the Court's preference for the truth regarding a convict's being intellectually disabled with the Court's and the evidence rules' willingness to entertain fictions as a premise for various rulings and rules.

Thursday, April 06, 2017

Prices, Money, Speech, and Democracy

by Michael Dorf

In my latest Verdict column, I question the wisdom of last week's Supreme Court decision in Expressions Hair Design v. Schneiderman. The case involves a NY statute that--as construed by the Supreme Court in reliance on the earlier opinion by the Second Circuit--forbids merchants from placing a "surcharge" on credit card purchases, while allowing a discount for cash purchases. Because these are economically identical, the Court said, the NY law is really a regulation of how merchants communicate with their customers and thus a regulation of commercial speech. Accordingly, the SCOTUS remanded to the Second Circuit for application of commercial speech precedents.

In my column, I connect Expressions Hair Design with the Court's campaign finance case law and express the concern that under the guise of freedom of speech, the Roberts Court may be undermining the New Deal settlement, by which courts grant near-complete deference to elected officials in regulating the economy. Here I want to elaborate the campaign finance point.

Wednesday, April 05, 2017

Professor Peter Smith and Originalism as Levels of Generality

By Eric Segall

I have been writing, reading, teaching and talking about originalism since 1995.  I try to keep up with the literature (a daunting task) but that perseverance can pay great dividends as it did this week when reading Professor Peter Smith's new article "Originalism and Level of Generality." Smith provides a wonderful explanation of just how far most contemporary academic originalists have strayed from a theory separate from "living constitutionalism," while also pointing out how inconsistent Justices Scalia and Thomas have been in their selective use of historical reasoning. While others including Mike and I have also told a similar story, Professor Smith has done an excellent job recounting it and bringing it up to date. I have never met Professor Smith but anyone interested in the current debates over originalism should read this piece.

How My Satirical April Fools' Essay Became Real Fake News

by Michael Dorf

Yesterday my April Fools' blog post criticizing the Trump administration for a non-existent plan to run ads urging people not to sign up for health insurance on the exchanges created pursuant to the Affordable Care Act was republished by Newsweek as though it were real. The amusing error says much less about Newsweek--given the sequence of events I'll describe below--than it does about Donald Trump.

Tuesday, April 04, 2017

A Do-Nothing Presidency is Win-Win

by Neil H. Buchanan

Why should Donald Trump bother trying to do anything during his presidency?  One answer might be that he has a list of things that he genuinely wants to accomplish, but that hardly seems likely.  He never really cared about anything other than insulting Barack Obama and spewing bigotry, and his views on substantive policy issues have always been, shall we say, fluid.

Even so, Trump has shown signs in the past few weeks of actually caring about notching "wins" in his presidency.  This is perhaps understandable for a person who loves to pin the loser label on everyone else.  Yet it truly is surprising that Trump is putting in something resembling real effort on various issues, especially issues on which he need not weigh in.

In a recent column, for example, I discussed Trump's unexpected embrace of the American Health Care Act, and I asked why he would "put his own credibility on the line with a bill that is obviously a train wreck."  The train subsequently crashed, and sure enough, Trump looks like a loser.

Unsurprisingly, he has been spending his time over the past week or so blaming everyone and anyone for that embarrassing defeat.  And now he wants to get involved in the tax reform food fight?  That is a recipe for political disaster for ever a skilled politician.

The question is: Why does Trump not simply give up now and play-act his way through a presidency in which nothing much happens?  This would make it possible for him not ultimately to be judged the worst president in history, and it would also allow him simply to enjoy the pure ego trip of being president.  Does he have the survival instincts to decide to do nothing?

Monday, April 03, 2017

Alternatives to the Pence Principle

by Michael Dorf

Since the (re)revelation that Vice President Mike Pence does not dine alone with women not his wife or attend parties where alcohol is served without his wife, most of the critical attention paid to this story (such as this Vox piece) has focused on the resulting (arguably illegal) denial to women of equal opportunities for career advancement, with a smattering of essays (such as this Atlantic piece) slotting the furor itself into a narrative of disconnection between religious conservative America and secular liberal America. Here I'll add a couple of observations about the phenomenon itself and then offer a thought about how someone with Pence's concerns might address them in ways that do not adversely affect women.

Sunday, April 02, 2017

Don't Celebrate Prematurely: The Trump Administration Has A "Plan B" For De-Funding Planned Parenthood

by Diane Klein

The collapse of the American Health Care Act (AHCA) was the biggest headline of March 24, 2017. The New York Times called it a "major defeat," and the next day, CNN called it an "acute embarrassment."  What Paul Ryan presented to the Republicans as a Hobson's choice - take this version of "repeal and replace" or nothing at all - instead left him in the position of Buridan's ass: starved for votes, unable to move left without alienating the Freedom Caucus (née the Tea Party), or right without losing moderate Republicans.

A crucial flashpoint in the debate was Planned Parenthood, a bête noire of the far right. The abandoned AHCA included provisions that directly targeted the organization, although not by name.  As the CBO explained, the AHCA cut off federal funds to any 501(c)(3) entity both "primarily engaged in providing family planning and reproductive health services and related medical care" and "that provides abortions" (other than in cases of rape, incest, or to save the woman's life), and, crucially, "that had expenditures under the Medicaid program that exceeded $350 million in fiscal year 2014."  There is only one such entity: Planned Parenthood Federation of America (including its affiliates and clinics).

Naturally, Planned Parenthood and its supporters were exultant at having "saved" the funding, and even the Breitbart.com story that day was headlined, "Cecile Richards Credits Planned Parenthood Supporters With Stopping AHCA." But while all of us were distracted by Devin Nunes and the unfolding Russia scandal, the Republicans kept Planned Parenthood in the crosshairs. On March 30, 2017, Vice President Mike Pence, an ardent abortion foe, cast a tie-breaking vote in the Senate to send a new defunding bill to Trump's desk. And given the alacrity with which Trump reinstated the "Mexico City policy" barring foreign aid to groups that even provide abortion counseling - it was one of the executive orders Trump signed on his first business day in office, January 23, 2017 - there is no reason to think he will hesitate to sign this bill.

Saturday, April 01, 2017

Law Profs React to Trump Order Authorizing Anti-Obamacare Ads

by Michael Dorf

Remember back when conservatives were going nuts about how President Obama was supposedly acting like a king because he was using prosecutorial discretion to prioritize deportation of violent criminals while supposedly giving legal status to various categories of undocumented immigrants? Most liberals pushed back by arguing that the programs at issue in what became the 4-4 deadlocked case of United States v. Texas did not actually present a problem under the Take Care Clause of Article II because the real issue was simply one of statutory construction. Nevertheless, a few liberals--including yours truly and, most prominently, UC Hastings law professor Zach Price--warned that we ought to be worried about some of the arguments being advanced to sustain executive power in the unlikely but terrifying event of a Trump presidency. (I summarized the debate in a blog post almost exactly a year ago.) Now that the unlikely and terrifying has come to pass, I take no satisfaction in saying "I told you so." But I say it nonetheless.